Govt clears two names for HC amid tussle over appointments

Amid escalating tension between the executive and the judiciary over the collegium system of appointing judges, the Centre on Tuesday cleared two names for high court judgeship.

Amid escalating tension between the executive and the judiciary over the collegium system of appointing judges, the central government on Tuesday cleared two names recommended in September for high court judgeship, a day after the Supreme Court expressed its deep anguish over the government sitting on recommendations of the collegium.

Govt clears two names for HC amid tussle over appointments

The two appointments to the Bombay high court on Tuesday came three days after the government returned 19 older recommendations, including 10 names that were reiterated by the collegium -- the prime concern expressed by the apex court on Monday when it was not aware of the names having been sent back ( nor did the government’s law officers inform it that the names had been sent back).

The Supreme Court collegium is expected to meet sometime next week, when all five of the senior-most judges are available.

Under the memorandum of procedure (MoP) that guides judicial appointments, the government can only object once if it does not agree with the collegium’s recommendations, but is bound by the decision after the names are reiterated.

According to people aware of the matter, the Union law ministry, through its communication on November 25, has sent back 10 names asking the collegium to reconsider them though these recommendations already stood reiterated. These names included three lawyers for elevation to the Calcutta high court, two for the Kerala high court and five candidates for the Allahabad high court. Brushing aside the objections raised by the government over their appointment as high court judges, the collegium had reiterated its recommendations over the last one-and-a-half years.

The other nine names returned by the government included senior advocate Saurabh Kirpal -- first openly gay person whose name was recommended by the collegium in November 2021 for appointment as a judge of the Delhi high court. Of the 14 lawyers recommended by the Delhi high court collegium for judgeship after 2017, when Kirpal’s name was proposed, 13 have been appointed as judges in the high court even as the government has sent back his name after sitting on it for more than a year.

The other names returned by the government included two names each for high courts of Madras and Rajasthan, and one name each for high courts of Telangana, Bombay, Orissa and Punjab & Haryana.

Meanwhile, on Tuesday, the government notified the appointment of two lawyers as additional judges of the Bombay high court. These recommendations were made by the Supreme Court collegium in September this year. Union minister Kiren Rijiju on Tuesday announced the appointments in a tweet.

The appointments to the Bombay high court have come a day after the Supreme Court disapproved of Rijiju’s public comments criticising the collegium system of appointing judges, and underlined that the Centre is bound to “observe the law of the land” and cannot “frustrate the entire system” just because it is “unhappy” about its legislation on judicial appointments failing to pass the test of constitutionality. In 2015, the top court struck down a law to replace the collegium system with a new model of judicial appointments.

Directly addressing the law minister’s recent comments on the collegium system for the first time on Monday, a bench, led by justice Sanjay Kishan Kaul, said it cannot keep ignoring statements made by somebody “high enough” like the law minister.

“I ignore press reports but what he (Rijiju) says; when somebody high enough says ‘let them do it themselves’, (then) we will do it (make appointments) ourselves, if necessary...It is not just anyone saying it. It’s from someone high enough. And it’s a reported TV interview. I cannot ignore...It should not have come,” justice Kaul said on Monday.

Taking up a contempt plea against the government for withholding several names recommended for appointment as high court judges, the bench also implored attorney general R Venkataramani and solicitor general Tushar Mehta to ascertain that the “law of the land is observed” by the government and that the collegium’s recommendations pending for several months are expedited so that judicial orders do not have to be passed.

During the Monday hearing, justice Kaul had also enquired from the law officers as to how the government can return the names even after reiteration since the Supreme Court judgments and the MoP were unequivocal that names once reiterated by the collegium must be notified for appointments.

Notably, 19 names were sent back by the government two days before this hearing, but there was no mention of this development by the AG and the SG during the proceedings on Monday. The court will hear this case again on December 8.

As cited by the bench during the November 11 hearing, 11 names recommended by the collegium between September 2021 and July 2022 have remained pending till date — the oldest of these dated back to September 2021. Of the 11 names recommended, one lawyer withdrew his name in February. Besides, there are also 10 other names pending with the government, which have been reiterated by the collegium. Of these, one lawyer passed away a couple of months ago.

At various instances during the past month, the law minister has commented that the Supreme Court collegium appoints people who are known to the judges; called the collegium system “opaque” and “alien” to the Constitution; and described the selection system as the only one where judges appoint judges.

In 2014, the NDA government passed the National Judicial Appointment Commission (NJAC) Act, setting up an alternative system for appointment of judges to constitutional courts. But in 2015, the Supreme Court ruled that the law was unconstitutional as it sought to tinker with the independence of the judiciary. The court’s pronouncement revived the collegium system – a method of judicial appointments evolved through three constitution bench judgments of the apex court between 1981 and 1998.

With Union law minister Rijiju in attendance at a function organised by the SCBA on November 25 to celebrate Constitution Day, Chief Justice of India (CJI) Dhananjaya Y Chandrachud stressed the need for “constitutional statesmanship” between the Centre and the apex court, saying the two institutions cannot keep finding fault with each other in matters of judicial appointments.

Calling for “harmony” and “balance”, the CJI on that day underlined that the collegium does a lot of homework before names are sent to the government for notifying appointments, and therefore the two institutions need to work to finding just conclusions.